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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
22-JUN-2026
09:04 AM
Dkt. 36 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
KOA KAAKIMAKA,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 3CPC-XX-XXXXXXX)
JUNE 22, 2026
DEVENS, C.J., McKENNA, AND EDDINS, JJ., AND
CIRCUIT JUDGE SOUZA, ASSIGNED BY REASON OF VACANCY;
WITH GINOZA, J., CONCURRING SEPARATELY
OPINION OF THE COURT BY EDDINS, J.
I.
A man stood outside a vacation home and held his phone up
to a high bathroom window. A teenaged girl was inside, in the
shower. She saw the phone. She saw a hand. She did not see *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
the man, because the man was never in the room with her. He was
outside.
The State charged the man with a single count, violation of
privacy in the first degree, Hawaiʻi Revised Statutes (HRS)
§ 711-1110.9(1)(a) (Supp. 2018). The statute makes it a class C
felony for a person to “intentionally or knowingly install[] or
use[], or both, in any private place, without consent of the
person or persons entitled to privacy therein, any device for
observing, recording, amplifying, or broadcasting another person
in a stage of undress or sexual activity in that place[.]” HRS
§ 711-1110.9(1)(a) (emphases added).
“In” means inside. The statute uses that preposition
twice. The device must be installed or used “in” the private
place, and the person recorded must be “in that place.” Both
point inward. The clause “without consent of the person or
persons entitled to privacy therein” reinforces the spatial
requirement.
The evidence showed that the phone was outside a screen
that covered a glass window. The man stood beneath the window
and held the phone up. He never entered the bathroom. Neither
did the phone.
Article I, section 5 of the Hawaiʻi Constitution forbids the
State from depriving any person of liberty without due process
of law. Due process demands proof of every element of every
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offense, beyond a reasonable doubt. The State did not, and on
this record could not, prove that the device was used “in” the
private place.
The conviction cannot stand. We reverse.
II.
Koa Kaakimaka was tried over two days in the Circuit Court
of the Third Circuit.
The trial evidence, largely undisputed, established the
following.
In June 2018, a woman and her family vacationed at a rental
home on Hawaiʻi Island. The woman’s 15-year-old daughter went to
shower. The shower was a walk-in. It had no door. It sat
inside an enclosed bathroom. One wall had a window.
The teenager took her phone into the shower. Music was
playing. She washed her hair. She sang along. Then she looked
up. A phone was in the window, shaking, as if whoever held it
was trying to prop themselves up. Behind it she could make out
a hand, a wrist, the top of a head. The phone was a white or
silver iPhone 5s. Outside the glass.
The girl panicked. She texted her mother. She screamed.
Her mother came in and found her cowering nude against the wall
under the window. The mother threw a towel around her daughter,
went outside to check, and called the police.
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A Hawaiʻi County Police Department officer responded. He
photographed the bathroom and the area outside the window.
Those photographs showed that the window sat about six feet
above the ground on the exterior wall of the bathroom. A window
screen covered the outside of the glass. The roof of the house
overhung the window. When the officer tried to record through
the screen himself, the result was an image laced with the
cross-hatching of the screen mesh.
The officer located Kaakimaka at the rental property.
Kaakimaka had a phone matching the girl’s description. In a
recorded interview, Kaakimaka admitted he had tried to
videorecord the shower area through the bathroom window with his
phone. He said he deleted the recording. No recording was
recovered.
The jury convicted Kaakimaka as charged.
Kaakimaka appealed, raising jury-instruction issues,
insufficient evidence, a suppression challenge, and a deficiency
in the indictment.
A divided Intermediate Court of Appeals (ICA) panel vacated
the conviction on charging-document grounds. Because the ICA
plurality held that the evidence was sufficient to convict, it
dismissed the indictment without prejudice. Judge Hiraoka
dissented on sufficiency. He concluded that the plain statutory
language requires the device to be “in” the private place.
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Because, “[t]he State did not introduce evidence that Kaakimaka
or his phone were ‘in’ the bathroom where [the teenager] was
showering,” Judge Hiraoka reasoned that there was insufficient
evidence to convict Kaakimaka.
The State sought cert.
This court accepted cert and decided only the chargingdocument issue. State v. Kaakimaka, 156 Hawaiʻi 302, 305, 574
P.3d 767, 770 (2025). The indictment properly charged
Kaakimaka, we ruled. Id. The case was remanded to the ICA to
address Kaakimaka’s other points of error. Id.
On remand, the ICA rejected Kaakimaka’s remaining points of
error. Judge Hiraoka concurred in part and dissented in part.
He pointed out that this court had mistakenly stated that the
ICA had not addressed sufficiency. “We addressed the
sufficiency of evidence because we needed to decide whether to
vacate the conviction with or without prejudice,” Judge Hiraoka
correctly observed. The plurality held the evidence was
sufficient and he had dissented. He repeated his position:
“[t]he words ‘in any private place’ and ‘in that place’ refer to
a single location the defendant or recording device and the
complaining witness must both be ‘in’ as an attendant
circumstance of the crime.”
Kaakimaka applied for cert. He raised jury instruction
issues, including proposed and rejected definitions of
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“installed or used a device in a private place” and “private
place” — the same statutory language at the heart of the
sufficiency question. He did not separately raise sufficiency.
We accepted cert and ordered supplemental briefing per
Hawaiʻi Rules of Appellate Procedure Rule 28(b)(4) to address
whether substantial evidence supported the conviction. Both
parties briefed the issue.
We hold the evidence insufficient and reverse Kaakimaka’s
conviction.
III.
HRS § 711-1110.9(1)(a) requires that the device, or the
person using it, be in the private place.
“Statutory interpretation starts with the statute’s words.”
Alpha, Inc. v. Bd. of Water Supply, 154 Hawaiʻi 486, 490, 555
P.3d 173, 177 (2024). Words mean what they ordinarily mean,
unless the statute signals otherwise. Saranillio v. Silva, 78
Hawaiʻi 1, 10, 889 P.2d 685, 694 (1995).
The text reads:
A person commits the offense of violation of privacy in the
first degree if, except in the execution of a public duty
or as authorized by law:
(a) The person intentionally or knowingly installs
or uses, or both, in any private place, without consent of
the person or persons entitled to privacy therein, any
device for observing, recording, amplifying, or
broadcasting another person in a stage of undress or sexual
activity in that place[.]
HRS § 711-1110.9(1)(a) (emphases added).
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Three textual signals do the work.
First, “installs or uses, or both, in any private place”
fixes the act and where it occurs. The verbs and the
prepositional phrase are tied together. The defendant must
install or use “in” the private place. Not from outside it.
Not adjacent to it. Inside it.
Second, “in that place” returns to the same location. The
legislature chose a single anchor. The defendant’s installation
or use occurs there. The victim is observed or recorded there.
“In” appears twice, and each time it points to one place.
Third, “without consent of the person or persons entitled
to privacy therein” reinforces the spatial reading. “Therein”
means inside. The privacy interest the legislature meant to
protect is freedom from intrusion within a bounded space.
Put more plainly, this is grammar. The prepositional
phrases (“in any private place,” “in that place”) lock to the
verbs (“installs,” “uses”). “Therein” seals the reading. It
reaches back to the same place. Three locational markers, all
pointing inward. Grammatical structure locates the act inside
the place the preposition names. Simple syntax. Simple result.
“In” is not statutorily defined. Its ordinary meaning is
clear. Merriam-Webster defines “in” as a function word
indicating “inclusion, location, or position within limits.”
In, Merriam-Webster Online Dictionary, https://www.merriam7
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webster.com/dictionary/in [https://perma.cc/AU28-K5QG]. To be
“in” a place is to be inside it. That is what the word has
always meant. That is what it means here.
English speakers use it that way every day. A person who
says “the camera is in the drawer” does not mean the camera is
pointed at the drawer from across the room.
The State asks us to give a felony statute that uses
perhaps the most ordinary word in the language a meaning the
word does not carry in any other context, legal or otherwise.
The legislature chose a common preposition. Common prepositions
do common work.
We “cannot change the language of the statute, supply a
want, or enlarge upon it in order to make it suit a certain
state of facts.” State v. Haugen, 104 Hawaiʻi 71, 75, 85 P.3d
178, 182 (2004) (quoting State v. Dudoit, 90 Hawaiʻi 262, 271,
978 P.2d 700, 709 (1999)). The State would have us supply a
want. Haugen forbids it.
The surrounding statutory context confirms the unambiguous
textual reading. HRS § 711-1111(1)(e) (2014 & Supp. 2016),
violation of privacy in the second degree, addresses devices
used “outside a private place” to capture sounds originating
inside. The legislature knew how to write “outside” when it
wanted to. It used “outside” in the second-degree statute. It
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used “in” in the first-degree statute. The contrast is
deliberate.
The second-degree offense makes the same distinction
internally. HRS § 711-1111(1)(d) uses identical language to the
first-degree offense — “[i]nstalls or uses, or both, in any
private place” — for recording sounds or events other than
undress or sexual activity. The neighboring subsection, (1)(e),
separately addresses devices used “outside a private place.”
The two work as a pair. One covers inside. The other covers
outside. The same “in any private place” phrase appears in both
the first-degree and the second-degree offenses. It cannot mean
“inside” in one and “outside or near” in the other.
HRS § 711-1111(1)(b) reinforces the point from another
angle. That subsection punishes a person who “[p]eers or peeps
into a window or other opening of a dwelling” for a lewd or
unlawful purpose. It’s a different offense with different
elements – eye-based observation, a dwelling adapted for
overnight accommodations, a specific illicit purpose. What
matters here is where the legislature placed it. Outside-thewindow conduct went in the second-degree offense, a misdemeanor.
That placement tells us the first-degree offense was not written
to cover the same spatial zone. Under the correct reading, the
two provisions occupy separate ground: subsection (1)(a) reaches
devices used inside the private place, and subsection (1)(b)
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reaches conduct from outside. The State’s construction would
collapse that separation and invite the kind of “inconsistency,
contradiction, and illogicality” Cornelio tells us to avoid.
State v. Cornelio, 84 Hawaiʻi 476, 484, 935 P.2d 1021, 1029
(1997).
We pause to address the concurrence. It agrees with the
outcome but reaches it on different grounds. The concurrence
treats HRS § 711-1110.9(1)(a) as ambiguous on whether the device
or perpetrator must be inside the private place. It resolves
the putative ambiguity by reading the first-degree statute
against HRS § 711-1111(1)(b) and (e). So we part ways at the
threshold question: whether the first-degree statute is
unambiguous on its face.
The first-degree’s text is unambiguous. Pari materia
confirms plain readings. It does not unsettle them.
The concurrence relies on Yokota for the canonical rule
that pari materia clarifies the doubtful via the clear. State
v. Yokota, 143 Hawaiʻi 200, 205, 426 P.3d 424, 429 (2018). But
the rule presupposes ambiguity in the statute under
interpretation. The concurrence believes that precondition is
met. Our textual reading shows it is not.
Treating a clear statute as doubtful is precisely the move
Obrero forecloses. See State v. Obrero, 151 Hawaiʻi 472, 479,
517 P.3d 755, 762 (2022) (pari materia is inapplicable where a
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statute is unambiguous on its face); see also Barker v. Young,
153 Hawaiʻi 144, 149, 528 P.3d 217, 222 (2023) (pari materia
clarifies the doubtful; it does not “create doubt” in a clear
statute).
HRS § 711-1110.9(1)(a)’s grammar ties “in any private
place” to “installs or uses.” Comparison with HRS § 711-1111(1)(b) and (e) merely confirms what the text supplies.
We return to the State’s argument. The State insists that
the phone was used in the private place because the window is
six feet off the ground, not accessible to a casual passerby,
and under the roof overhang. From these facts the State reasons
that the window area is part of the bathroom itself. The window
frame, the windowsill, and the space beneath the overhang, the
State’s argument goes, are part of the same structure as the
bathroom, and are not separate “places.”
But the bathroom is the private place. The walls bound it.
The screen sits on the outside of the glass. A roof overhang is
shelter from rain. It does not extend the boundaries of the
room inside. The overhang covers the walkway. It does not move
the walls.
On a sufficiency challenge, we ask whether substantial
evidence, viewed in the light most favorable to the State,
supports each element. State v. Kalaola, 124 Hawaiʻi 43, 49, 237
P.3d 1109, 1115 (2010).
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The State proved much. It proved Kaakimaka used a phone.
It proved he aimed it at a bathroom window. It proved a 15-year-old girl was showering on the other side of that window.
It proved Kaakimaka later admitted that he had tried to
videorecord her and to delete what he recorded. It proved he
was found nearby with a phone matching the girl’s description.
The State proved a great deal about the reprehensible conduct of
a man who had no business doing what he did.
What it did not prove, because no witness ever said it,
because no photograph ever showed it, and because Kaakimaka’s
own statement undercut it, is that the phone, or any part of
Kaakimaka, was inside the bathroom.
The teenaged girl was clear. The phone she saw was
“outside of the glass.” The officer confirmed it. The State
never claimed otherwise.
On this record the verdict cannot stand. Nor can the case
be retried on an included offense.
Although the parties treated HRS § 711-1111(1)(d) as an
included offense at trial, we address it briefly because the
trial record does not support that treatment. The only three
second-degree offenses bearing on violations of privacy in the
first degree require elements the first-degree offense does not.
See HRS § 701-109(4)(a) (2014 & Supp. 2018) (included offenses
are those “established by proof of the same or less than all the
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facts required to establish the commission of the offense
charged”); HRS § 711-1111(1)(b) (peering or peeping into a
dwelling or other structure for a lewd or unlawful purpose), HRS
§ 711-1111(1)(d) (recording in a private place events “other
than another person in a stage of undress or sexual activity”),
HRS § 711-1111(1)(e) (recording outside a private place to hear,
amplify, or broadcast sounds).
A conviction under subsection (1)(d) would require proof
that the person was not in a stage of undress or sexual
activity. The evidence here proves the opposite. The girl was
undressed in the shower. The same undisputed evidence that
established the undress element of the violation of privacy in
the first degree charge forecloses a (1)(d) conviction. See HRS
§ 701-109(4)(a). Because there is no applicable included
offense in this case, violation of privacy in the second degree
may not be retried. State v. Malufau, 80 Hawaiʻi 126, 138, 906
P.2d 612, 624 (1995).
Reversal on insufficient evidence disposes of the case.
Double jeopardy bars retrial. See State v. Kaulia, 128 Hawaiʻi
479, 496, 291 P.3d 377, 394 (2013).
IV.
The legislature defined this crime by where the device or
person went. The device did not go where the law requires.
That ends it.
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The State warns that our reading leaves a gap in coverage.
A camera concealed in a ventilation shaft above a toilet stall.
A camera behind a one-way mirror in the next room. A telephoto
lens pointed from across the street. A drone hovering above the
property.
But a spatial requirement that turns on what a device can
reach erases the crime’s locational element and is no
requirement at all.
No doubt certain scenarios are disturbing. Others, like a
home security system that catches a neighbor’s open window, may
not be. While unsettling situations may invite a legislative
response, our role is to apply the law as written, not the law
that might be written tomorrow.
We vacate the ICA’s November 20, 2025 Judgment on Appeal.
We reverse the circuit court’s Judgment of Conviction entered
October 17, 2022. We remand to the circuit court with
instructions to enter a judgment of acquittal.
“In” means in. The phone was out.
R. Hermann Heimgartner /s/ Vladimir P. Devens for petitioner
/s/ Sabrina S. McKenna
Charles E. Murray III
for respondent /s/ Todd W. Eddins
/s/ Kevin A.K. Souza
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